Cinema Law: Do You Need to Copyright Your Festival Submission?

Q: I’m about to send my film to a festival for consideration. How can I copyright it? I want to make sure it’s protected before I send it anywhere.

I get asked this question probably more than any other in my day-to-day practice. I understand why: You’re about to send your work into the world and want to ensure that no one else can commoditize it without your consent. I relate completely. I was once a young filmmaker, too, and I know how nerve-wracking submitting to festivals can get. Not only are you putting your work in front of people whose sole job it is to judge its merit, once it’s out there, it’s out there for anyone to steal, copy, and co-opt.

However, there’s a fallacy that “copyrighting” is some affirmative action you have to take, as if creation alone isn’t enough to consider the work protectable. Under the laws of this country, once you create the work, it is protected by law. And not just any law—the U.S. Constitution protects copyrights by “promot[ing] the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Protection doesn’t stop at the Constitution either. The U.S. Copyright Act of 1790 was the first law that explicitly granted copyright protection to creators. That law has been updated and amended continually since then, resulting in the current version—the Copyright Act of 1976—which automatically protects “original works of authorship fixed in any tangible medium of expression.” This means that once your work is committed to paper, canvas, clay, film, video, etc., you don’t need to take any further action to ensure that your film is protected. You don’t even have to put a © on it (even though you should).

When I get this question, often people are really asking me about how to maximize the security their work gets, and while there are a number of steps you can take, copyright protection really begins and ends with registration through the U.S. Copyright Office. While registering your copyright is discretionary, you should consider it part and parcel of your job as a moviemaker. Registration provides three main benefits:

  1. It produces an official government record of your work and creates a presumption that your work preceded the infringing work. In other words, it creates really powerful evidence in litigation that your work was infringed.
  1. It allows you to sue for statutory damages—upwards of $150,000 for each infringed work. Depending on the circumstance in which your work was infringed, a registration might actually be a valuable economic asset. Without registration, you’d have to prove the actual financial harm you suffered as a result of the infringement, which can be very hard to do.
  1. Registration is oh-so-easy. It costs $35 for each work and can be done online.

Most importantly, if you find that your work has been ripped off, you have to register it before you can bring an action for copyright infringement. Failure to register is a barrier to entry. In essence, there’s a whole bunch of upsides to registering your film before you send it to a festival, and almost no disadvantages (besides a small cost). Remember, though, that if your film does get selected and a studio likes it enough to distribute it, you will almost certainly have to sell the copyright as part of that transaction. Few studios are willing to distribute a film they don’t have a total financial claim over, which means that you won’t just have to convey the copyright, you’ll have to convey the registration as well.

Ultimately, whether or not you register your film, you have to let your baby go at some point and trust that you raised it right. Registration is one very powerful tool that will help you do that. MM

Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into staff@moviemaker.com with the subject line “Cinema Law Question.”

Gregory R. Kanaan, Esq. is a Boston-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most. 

The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.

Photograph by Dana Bartekoske Heinemann/Dreamstime.

2 Comments

  1. Ed

    April 19, 2015 at 9:41 pm

    You want to talk about copyright when it comes to festivals, you guys need to seriously talk about how Film Festivals are one of the biggest contributors when it comes to piracy.

    How many filmmakers submit their films to festivals, and how many of them get “lost” or “misplaced” after they’ve been rejected? The accepted ones never get lost or misplaced for some reason. One film I made I submitted to only a handful of festivals, and they weren’t small potatoes either; these are the big name festivals. Rejected; no surprise there. But a few months later, my films shows up on BitTorrent and YouTube. It’s not only happened to me, but friends as well. What happens to our films after they’ve been rejected? They just throw them in the dump? They certainly don’t return them either. I can only assume it was the festival who didn’t do their jobs in maintaining the filmmakers copyright protection to allow films to get pirated.

    • Gregory Kanaan

      April 22, 2015 at 2:26 pm

      Hey Ed,

      It’s my understanding that rejected submissions are junked. In my day, films were never returned to the filmmaker and I can’t imagine that’s changed in the intervening years, simply because of the time and man-hours involved in something like that. Remember that most festivals are staffed by unpaid and underpaid volunteers who work around the clock to get the festival up and running. They don’t really have the time to sit down at the end of it all and restuff envelopes with rejected films.

      While I have no idea how widespread this issue is, I can say that film festivals generally have no obligation or duty to help you protect your copyrighted work. That burden rests solely with you the filmmaker (the copyright rests with the underlying work itself and not with any particular physical copy). If you can prove, however, that the film festival purposefully or negligently leaked your film onto the internet, they could be liable under a form of vicarious or contributory copyright infringement. That is, if they participated or facilitated in any way the leaking of your film without your permission, even if it’s not for financial gain. Unfortunately, this type of “secondary” infringement can be very difficult to prove. To prove vicarious infringement, you’d need evidence that someone involved with the festival leaked the film in a way that was within the scope of their employment. To prove contributory infringement, you’d need to prove that the festival knowingly facilitated the leaking of the film.

      If you believe that the festival is responsible, you should A) try to confirm that no one else who helped make the film is responsible, and B) talk to an attorney who can walk you through the specifics of filing a secondary infringement claim

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